FoxNews.com reporter Jana Winter lost another round in her battle to protect her confidential sources for an exclusive story about Colorado theater shooting suspect James Holmes, when a New York appellate court voted 3-2 to uphold an order for her to appear before a Colorado judge.
The decision Tuesday upheld a lower court's decision to enforce a Colorado subpoena that could force Winter to reveal who told her about a notebook Holmes sent to his psychiatrist or go to jail.
Colorado needs the approval of New York judges to enforce the subpoena.
"We find that the Supreme Court acted properly in directing respondent to appear in the Colorado District Court," read the majority opinion. "Accordingly, the inquiry into admissibility and privilege remains the province of the demanding State rather than the sending State."
Winter's attorney said she will appeal the ruling.
Citing unidentified law-enforcement sources, Winter reported that Holmes sent the psychiatrist a notebook containing violent images. After FoxNews.com reported the story, media outlets around the world picked it up. But a Colorado judge who later recused himself from the case ruled that whoever spoke to Winter had violated his gag order and that Winter could be compelled to divulge his or her name. Winter has said she will not reveal the names of her sources.
Holmes has pleaded insanity to charges of killing 12 people and injuring 70.
In a strongly-worded dissent, Judge David Saxe said the court was bound to protect Winter from undue hardship, which he said was more than simply travelling west to appear in court. Revealing her sources could compromise her career as a journalist.
"Nothing in [Colorado's shield law] limits the concept of “undue hardship” to the unpleasantness or cost of travel; here, the probable result of incarceration or the loss of her livelihood is far more of a “hardship” than those minor considerations," Saxe wrote.
Winter's attorney, Dori Ann Hanswirth, said she will appeal and that she was encouraged by the dissent.
"I thought that the dissent was very powerfully written, persuasive, and something that we are very hopeful will get a lot of play with the New York Court of Appeals," she said.